Michael Waite Quoted in the Lawyers Weekly

20 May Michael Waite Quoted in the Lawyers Weekly

Practice restriction prevails on safety issue

Kim Arnott

In the interest of public safety, health professionals may face interim practice restrictions while awaiting disciplinary hearings, provided a complaint against them isn’t trivial, clearly misconceived or manifestly unreliable, the British Columbia Court of Appeal has ruled.

The unanimous decision in Scott v. College of Massage Therapists of British Columbia 2016 BCCA 180 provides clarification of the test for imposing interim conditions and will have implications for all regulated health professions, say legal observers.

Committees considering interim conditions need only to be satisfied that allegations of misconduct against a health care provider establish a prima
facie case pointing to the need for public protection, and should not be engaged in “deciding the merits of the case,” the court determined.

The decision upheld the approach the College of Massage Therapists of British Columbia took in imposing interim restrictions on the practice of therapist Trevor James Scott while it investigated allegations of sexual misconduct.

In 2014, a female patient complained that she was receiving a massage from Scott when she heard him unzip his pants and masturbate himself, and then felt him place his penis against her wrist.

She did not open her eyes during the incident or say anything to Scott. Immediately following the treatment, she went to the police to make a complaint. While not seeking criminal charges to be filed, she said she wanted the incident noted in case of future complaints.

After receiving the complaint, the college appointed an inquiry committee that conducted an ex
parte hearing. It determined that the allegations against Scott were “extremely serious” and the risk to public safety necessitated interim restrictions be placed on his practice, pending a full disciplinary hearing.

Those restrictions required that Scott not treat female patients without a chaperone present and that a notice indicating that condition be placed in all treatment rooms.

Denying the sexual conduct and noting that there were no prior complaints against him, Scott sought to have the interim conditions set aside.

A 2015 B.C. Supreme Court decision quashed the inquiry committee’s orders, finding that the committee relied entirely on the allegation to determine the risk to the public and noting there was insufficient evidence that Scott was masturbating.

But the Court of Appeal concluded that decision was in error because the role of the inquiry committee is not to decide the merits of the case, but only to consider whether the complaint before it justifies action necessary to protect the public.

“The inquiry committee should discount evidence that is inconsistent with objective and undisputed evidence or which is manifestly unreliable. The committee should consider any evidence led by the registrant to establish that the allegation is manifestly unfounded or manifestly exaggerated,” wrote Chief Justice Robert Bauman on behalf of the court. “But the committee is not otherwise required to consider the registrant’s evidence as to whether or not the substantive allegation against him or her is or is not well founded…”

Although the ruling reminds regulators that interim restrictions are “extraordinary remedies” that can have a devastating impact on individuals and should be carefully considered, the decision will likely make it harder for professionals to challenge interim orders, says Penny Washington, partner and leader of the health care group with Bull Housser in Vancouver.

“I think this does make it harder for a registrant to simply argue that a case isn’t strong enough,” she said. “It has to be manifestly unfounded and there has to be something pretty clear that you can rely on to say that it’s not necessary to take any steps to protect the public because this is so clearly an unfounded complaint.”

The decision sets “a pretty low bar” for governing bodies looking to impose interim conditions on registrants, agrees Michael Waite, a partner with Carbert Waite LLP in Calgary and national chair of the Canadian Bar Association’s Health Law section.

But he says it’s not clear if future courts will interpret the decision as “giving more deference to college tribunals in granting interim orders,” or simply as a “comprehensive enunciation of what the law already was.”

The clarification of the law coming from the province’s highest court is being welcomed.

The decision offers “very helpful guidance” to health regulators on how to approach their responsibility to protect the public, noted British Columbia’s College of Physicians and Surgeons in a public statement.

Washington added that there are not many legal decisions in this area to guide regulating bodies, given that practitioners and their governing bodies typically reach agreements regarding interim conditions.

“I think it’s always helpful when the court elucidates the test that a college is supposed to apply in these difficult situations,” she said.

Scott’s formal disciplinary hearing is scheduled for July. The court referred the matter of interim conditions back to the inquiry committee to “proceed as appropriate in light of the length of time that Scott has been practising on an unrestricted basis, the delay in holding a full hearing before the disciplinary committee and the reasons herein.”